Frank C. Morris, Jr., Member of the Firm in the Litigation, Employee Benefits & Executive Compensation, and Employment, Labor & Workforce Management practices, in the firm’s Washington, DC, office, was quoted in the Bloomberg Law Daily Labor Report, in “Covid-as-Disability Bound to Spur Workplace Conflicts, Lawsuits,” by Erin Mulvaney.
Following is an excerpt:
The EEOC’s determination that Covid-19 can be a disability in many circumstances will create confusion, and tee up litigation, as companies grapple with how to accommodate workers who contract the virus and experience symptoms including brain fog, headaches, and shortness of breath.
Last week’s long-awaited guidance from the U.S. Equal Employment Opportunity Commission for employers and workers navigating the pandemic addresses issues that have already sparked discrimination lawsuits under the Americans with Disabilities Act.
The agency made clear that not every person with Covid-19 will qualify, but said the virus’s after effects should be considered under the ADA’s three definitions for a disability, which cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.
Employment attorneys and academics say that guidance will help, but practically implementing the individualized assessments required by the ADA will continue to be a challenge. …
Potential Risk
Workers with Covid-19, even asymptomatic cases, can sue when they’re “regarded as” having a disability by their employers, the EEOC guidance said.
This argument has already been raised in lawsuits alleging discrimination against employees with positive Covid tests, though “regarded as” litigation has historically been rare compared to other cases in which people with disabilities say they were unlawfully denied job accommodations.
This prong of the ADA was previously applied in cases where workers were discriminated against for HIV or AIDS status, for example. But unlike other viruses, employers have been collecting information on Covid cases, which could lead to more litigation. …
While the “regarded as” aspect of the law presents the possibility of additional claims, it remains to be seen if they prove meritorious, said Frank Morris, an attorney at Epstein Becker & Green P.C., who focuses on the ADA and employment law. …
Long-Hauler Accommodations
An employer will also have to decide how a Covid-19 long-hauler’s essential functions are impacted, and how to accommodate them at work. There hasn’t been an onslaught of claims, yet, on long Covid issues.
“Covid-19 doesn’t automatically mean there is a disability. The ADA is individualized,” Morris said. “This omicron may throw more curves, as it’s more transmissible than prior rounds. That might cause people to think of the workplace rules once we know more about it.”
